Three women who conspired to commit fraud by faking an 89 year old man’s signature by tracing his signature on to a handwritten will have been jailed for a total of nine and half years. Senior associate Karen Levesley explores the details.
The late Jim Wilmot died in October 2014 leaving £319,883.24 but had no living relatives entitled to his estate. The three women, who reportedly claimed to have helped him in his last years, then came forward claiming they had stumbled across the will naming them as beneficiaries while helping to clean the house. The Police investigated after a neighbour reported her suspicions about the validity of the will. Forensic analysis showed that Mr Wilmot had not written any part of his last will and testament and that his signature had been traced on to the handwritten will.
The judge said “This is not any old fraud, it is a fraud that relates to a public document – a will. These are the foundations of what happens after people die. The integrity of the whole system has to be preserved and there is a need to make sure there is an element of deterrence.” It is clear from the judge’s remarks that the court takes false representations in relation to a person’s last will and testament extremely seriously.
The validity of a will can be challenged on a number of grounds. In many cases it is possible to challenge the validity of a will on grounds that the proper formalities have not been complied with, without the requirement for fraud to be involved as in Mr Wilmot’s case. For a will to be valid it must be in writing and signed by the testator (the person making the will) or by some other person in the testator’s presence and by his direction. However, the fact that forensic analysis in Mr Wilmot’s case showed that Mr Wilmot had not written any part of his last will and testament does not mean that in any other case where the will has been written by the hand of another person the validity of the will can automatically be challenged. The handwriting does not have to be the handwriting of the testator. It can be the handwriting of another person. The writing may be ink or pencil or produced by any means which makes it visible. However, if you use a combination of ink and pencil it is open to suggestion that the parts in pencil are deliberative only and they will be excluded from probate unless there is evidence that they were intended to be final.
The three women in Mr Wilmot’s case also forged Mr Wilmot’s signature and the will itself was not Mr Wilmot’s last will and testament. However to comply with the requirements for a valid will when signing your last will and testament, the lack of a conventional signature is not necessarily fatal. Anything which the testator intended to be a signature should suffice. An inky thumb print, initials and a mark made by a rubber stamp with the testator’s initials on it have all been found to be acceptable “signatures”. It is also permissible for another person to sign on the testator’s behalf, provided it is in the testator’s presence and by his direction. The testator must intend the signature to give effect to the will. The signature should be made or acknowledged by the testator in the presence of two or more witnesses present at the same time and each witness either attests and signs the will or acknowledges his signature in the presence of the testator. Although clearly desirable, it is not essential that the witnesses sign in the presence of each other, only that they sign in the presence of the testator. You must be very careful to get all this right. Otherwise the validity of your will could be challenged.
In Mr Wilmot’s case if it had not been for a neighbour reporting her suspicions about the validity of Mr Wilmot’s will to the Police, the three women may have got away with it. By the time they were arrested two of the women, who had named themselves as executors in the fake will, had already obtained grant of probate and taken money from Mr Wilmot’s life savings, pension fund and bonds and obtained a further £87,000 from the sale of his home.
To make sure that your estate goes where you want it to go always make sure you have an up to date will. To ensure that you properly comply with the formalities for making your will so that the validity of your will cannot be challenged afterwards, you should always consult a solicitor about your will, or if you would prefer, have a solicitor visit you. If you have concerns about the validity of a will, consider whether you want to incur the costs of challenging the will. Will you benefit from any challenge? What does the testator’s previous (valid) will say?
For further information, please contact:
Senior associate Karen Levesley
T: 0121 234 0105